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UN Members Must Rise to September’s Rule of Law Challenge

UN Members Must Rise to September's Rule of Law Challenge

What’s next after Rio? UN Photo/Mark Garten

After more than a year of planning, much diplomatic hype, and thousands of attendees, last month’s UN Conference on Sustainable Development in Rio de Janeiro produced what one activist called a “failure of epic proportions.” The few agreements—including yet another “universal intergovernmental high level political forum” to talk some more—seemed to fall well short of the challenge of impending environmental degradation.

In the wake of Rio, the already subdued expectations for the UN’s next big bash—the High Level Segment on the Rule of Law at this September’s General Assembly—may not seem particularly promising. After all, if the threat of rising sea levels and soaring temperatures couldn’t prompt action, what hope is there for something as anodyne as the rule of law?

Which is unfortunate for the absence of rule of law leaves its mark all around us. In Syria, an authoritarian government unconstrained by law has crushed peaceful dissent. In Afghanistan, corruption in the highest places and armed warlords have placed human security at ever greater risk. In the Democratic Republic of the Congo, the longstanding failure to entrench judicial institutions and bring perpetrators of abuse to account have fueled repeated cycles of conflict.

In short, the rule of law is not simply a nice after-thought. As the Arab uprisings have shown, it’s the foundation of government legitimacy, without which regional stability is unattainable. As Latin America’s rising productivity in the past decade makes clear, it’s a source of economic development. And as Europeans learned more than half a century ago, the rule of law is a cornerstone of democracy.

All of which makes it essential that, when heads of state gather in New York this September, they move beyond platitudes and commit to concrete goals, and a process for measuring progress, that advance access to justice for all, protect independent judges and lawyers, and further accountability for even the most senior officials.

But it won’t be easy. In recent years, the rule of law has become internationally celebrated even as it has been ignored. If Barack Obama and Iranian President Ahmadinejad can agree on nothing else, they can both praise the rule of law. Even President Yahya Jammeh of Gambia, who infamously threatened in September 2009 to “kill” human rights workers who criticized his government, nonetheless saw fit in a speech weeks later to hail “the rule of law” as a means of addressing “the complexities of today’s world.”

This September’s event at the UN is titled the “rule of law at the national and international levels.” The benign moniker masks a simmering conflict. Many developing countries want more “international” law to restrain the U.S.and other veto-wielding Permanent-5 powers on the UN Security Council, a body sorely in need of reform. By contrast, western donor governments are keen to focus on “national” rule of law needs in parts of Africa and the Middle East.

Given universal enthusiasm for a concept whose meaning is so contested, is there any way to bridge the gap?

Secretary General Ban Ki Moon has rightly called on states to ensure that September’s discussion is not a one-off event. He wants rule of law goals, a program of action with specific targets and a regular forum for meaningful dialogue among states and civil society. But he’s met stiff opposition. Some states have gone so far as to explicitly reject any commitments at all.

The key to progress may be to acknowledge that, while some rule of law needs are more extreme than others, no country is or should be beyond scrutiny. Despite last week’s burst of bipartisanship at the Supreme Court, even the U.S .has problems, ranging from the world’s highest incarceration rate to a legal aid system frayed by years of sustained cuts. The need for more rule of law is so vast and varied that every state could usefully pledge to do better in one or more areas. This would affirm the seriousness with which governments take their responsibilities to the rule of law overall.

On the international level, states could commit to ratify certain treaties (the U.S. has yet to join the Convention on Discrimination against Women); to respect the decisions of international tribunals (Brazil could halt its campaign of protest against the Inter-American Commission on Human Rights); or to recognize as compulsory the jurisdiction of the International Court of Justice to resolve inter-state spats (Russia has yet to do so).

Domestically, states might pledge to permit anyone under police questioning access to a lawyer (as the European Court of Human Rights has urged Turkey to do); to limit pre-trial detention to the maximum period of imprisonment in the event of conviction (some detainees in India reportedly languish for far longer); or to develop an independent mechanism to investigate allegations of custodial torture (in countries like Kazakhstan, Kyrgyzstan and Uzbekistan).

Donor governments, in particular, could use the occasion to establish a global fund for justice. By pooling resources from both private and governmental donors, and developing a financial reservoir to be tapped over time, the fund would curb the inefficiency and politicization of the current aid system.

Prudent investments in justice don’t have to be expensive. In the Democratic Republic of the Congo, mobile courts have fairly tried and convicted army soldiers for mass rape in far less time and at a fraction of the cost of international tribunals. In Nigeria, recent law graduates placed in police stations at modest expense have freed hundreds of persons who might otherwise have faced unnecessary months, if not years, in jail awaiting trial. In Sierra Leone, members of rural communities who have been trained as paralegals for far less than the price of a lawyer have resolved land disputes and won community access to roads, electricity, and environmental clean-up (you can watch one of these paralegals at work here).

In short, while more funding for justice is required over time, more intelligent donor assistance would help in the present climate of budgetary restraint.

Rule of law’s dualism—rooted in both law and politics, grand vision and everyday reality—is its attraction and its challenge. Its broken promise is visible everywhere—from the Dominican-born stateless child denied an education, to the Chinese blogger whose website is silenced, to the victim of racial profiling on the streets of New York. But its aspiration—that the law should apply equally to all—is what lends an overused phrase its compelling force. From now to September, diplomats must give it substance.




James Goldston

James A. Goldston is the founding executive director of the Open Society Justice Initiative, which promotes rights-based law reform and the development of legal capacity worldwide. A leading practitioner of international human rights and criminal law, Goldston has litigated several groundbreaking cases before the European Court of Human Rights and the United Nations treaty bodies, and has served as Coordinator of Prosecutions and Senior Trial Attorney in the Office of the Prosecutor at the International Criminal Court.